Free Motion to Quash - District Court of Colorado - Colorado

Case 1:04-cv-00438-JLK-MEH

Document 249

Filed 06/30/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-0438-PSF-OES TIMOTHY C. HOILES, Plaintiff and Counterclaim Defendant, v. JOSEPH M. ALIOTO, Defendant and Counterclaim Plaintiff.

PLAINTIFF'S MOTION TO QUASH THE DEPOSITION OF JOHN BITZER

Plaintiff and Counterclaim Defendant, Timothy C. Hoiles ("Hoiles"), files this Motion to Quash the Notice of Deposition of John F. Bitzer, Jr. ("Bitzer"). Defendant Joseph M. Alioto ("Alioto") has noticed the deposition of Bitzer1 to

1.

take place in Boston, Massachusetts, on July 12, 2005; that date is well past the court-set deadline of May 1, 2005 (and less than three weeks before trial). Exhibits 1 and 2. The Court should reject this latest attempt by Alioto to extend and/or reopen discovery and quash the deposition. 2. On April 5, 2005, Magistrate Judge Schlatter entered a Minute Order stating that

Bitzer's deposition shall be completed on or before May 1, 2005. Exhibit 2. The Minute Order further stated that if counsel are unable to arrange the deposition to take place before that date, they shall meet and confer to arrange a date convenient to all counsel and the witness. Id. Alioto was unable to secure the deposition of Bitzer prior to May 1, 2005.

1

Bitzer is a nonparty witness who has never resided in Colorado.
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Motion to Quash Bitzer.doc

Case 1:04-cv-00438-JLK-MEH

Document 249

Filed 06/30/2005

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3.

Complying with the Minute Order, Hoiles's counsel orally agreed to extend the

deadline to take Bitzer's deposition to early-June 2005. Alioto's counsel, however, never offered a date for the deposition to occur during that time period. In fact, Alioto's counsel did not forward a possible deposition date for Bitzer until June 21, 2005, proposing that Bitzer be deposed in Boston on July 20, 2005--twelve days before trial. Hoiles's counsel rejected this proposal. Alioto subsequently served the deposition notice at issue, without filing a motion for leave to extend or reopen discovery for this purpose or offering any explanation as to why Bitzer should be deposed two and a half months after the court-set deadline. 4. "Whether to extend or reopen discovery is committed to the sound discretion of

the trial court." Smith v. U.S., 834 F.2d 166, 169 (10th Cir. 1987). Relevant factors concerning whether discovery should be reopened include: 1) whether trial is imminent; 2) whether the request is opposed; and 3) whether the moving party was diligent in obtaining discovery within the guidelines established by the court. Sil-Flo, Inc. v. SFHC, Inc., 917 F.2d 1507, 1514 (10th Cir. 1990). The Court should quash the deposition notice, because 1) trial is obviously

imminent; 2) Hoiles is opposed to the notice; and 3) Alioto was not diligent in attempt to secure Bitzer's deposition within guidelines established by the Court. PRAYER For these reasons, Plaintiff and Counter-Defendant Timothy C. Hoiles requests the Court to quash the Notice of Deposition of John F. Bitzer, Jr.

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Respectfully submitted June 30th, 2005.

/s/ E. Glen Johnson E. Glen Johnson [email protected] Bart A. Rue [email protected] Frank P. Greenhaw IV [email protected] Kelly, Hart & Hallman, P.C. 201 Main Street, Suite 2500 Fort Worth, Texas 76102 (817) 332-2500 and Kenneth B. Siegel [email protected] William T. Hankinson [email protected] Katherine D. Varholak [email protected] Sherman & Howard, L.L.C. 633 17th Street, Suite 3000 Denver, Colorado 80202 (303) 297-2900 Attorneys for Plaintiff Timothy C. Hoiles

CERTIFICATE OF CONFERENCE Pursuant to Local Rule 7.1, counsel for Plaintiff conferred with Defendant's counsel on the merits of this Motion. Counsel for Defendant indicated that Defendant opposes this motion. A reasonable effort has been made to resolve the dispute without the necessity of court intervention, but the effort failed. The Motion is therefore presented to the Court for determination.

/s/ Bart A Rue

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CERTIFICATE OF SERVICE I hereby certify that on June30th, 2005, a true and correct copy of the foregoing Motion to Quash was served to: Ian L. Saffer [email protected] Scott Levin [email protected] Daniel R. Shulman [email protected] I hereby certify that I have served the foregoing to the following non-CM/ECF participants by e-mail: Maxwell M. Blecher John E. Andrews Blecher & Collins, P.C. 611 West Sixth Street, 20th Floor Los Angeles CA 90017-3120 [email protected] [email protected]

s/ Diane Collier

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